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http://www.signonsandiego.com/news/m...n16viejas.html

3 could face banishment by fledgling Viejas court

By Chet Barfield San Diego Union Tribune STAFF WRITER

September 16, 2005

VIEJAS INDIAN RESERVATION - Using modern-day legal practices to apply an ancient custom, the Viejas Indian band is setting up its own formal court in which three members could be banished from the tribe.

Viejas is taking the extraordinary step in response to what it considers a crime against the tribe: a home-invasion attack that almost killed a 27-year-old member.

The case, instead of being celebrated as a ground-breaking step in establishing a judicial branch of tribal government, has one of California's most prosperous and highly regarded tribes roiling in anger and bitterness.

Three Viejas tribal members are accused of participating in a brutal assault in July on a nephew of the tribe's chairman. The victim, Larry Sutton, was beaten with brass knuckles and suffered a life-threatening skull fracture. He is recovering, but his lawyer says he could be permanently impaired.

The upcoming trial, before a visiting judge from Arizona's Hopi tribe, will be the first of its kind in San Diego County.

Also unprecedented would be the possible sentence of disenrollment. In a prominent gaming tribe such as Viejas, the accused could lose not only huge sums of casino money, but much more.

"If you disenroll us, we have nowhere to go," said one of the
defendants, Tamara Banegas. "We have no rights as Native Americans."

Since aboriginal times, when banishment was the cultural equivalent of the death penalty, no American Indian in San Diego County, and perhaps in the state, has faced disenrollment over a crime against his or her tribe.

"We're going back to our custom and traditions," Viejas Chairman
Anthony Pico said. "We're sending a message to our people that we don't commit this kind of violence against people, our own people or other people.

"If you do . . . you could lose your (tribal) citizenship."

Of the three Viejas Indians accused, only Banegas, 27, is also charged in a criminal case in Superior Court. Prosecutors allege she assaulted Sutton's live-in girlfriend, who was not hospitalized.

Banegas' co-defendants in the criminal trial are her estranged
husband, Deangelo Cardenas, and his 18-year-old brother, Robert Boerner. Cardenas and Boerner live on the reservation but are not tribal members.

At the Viejas trial, Banegas, Michael LaChappa, 27, and Tina Hood, 28, will be accused of being part of a group that broke into Sutton's home on the reservation on July 17. The attack appears to have stemmed from long and increasingly violent hostilities between certain families and factions on the East County reservation.

Pico said the clashes have involved a small segment of the 300-member tribe but have become a growing concern. He said abuse of drugs, mainly methamphetamine, has been a factor.

Pico said an overwhelming majority of the tribal membership "was
absolutely in shock at the level of the violence that was involved" in the July assault.

"They felt we should do something about it," he said. "We don't want this to go on."

When the tribal body, known as the general council, convened at a monthly meeting July 20, members were angry, fearful and clamoring for punishment.

According to minutes of that meeting, motions were made not only to kick the accused nonmembers off the reservation, but also to withhold the monthly casino dividends of the tribal members involved and to give that money to Sutton to pay his medical bills.

Then it was suggested that the tribe get even tougher and banish
Banegas, LaChappa and Hood from Viejas, perhaps even disenroll them.

However, Pico warned that the tribe must tread cautiously because it was venturing into federal civil rights and constitutional law. "We have to give them due process," he was quoted as saying.

The tribe had another option.

For more than a year, Viejas has been developing plans for what would be the region's first tribal court, with an independent judge and formal evidentiary rules and procedures.

The upcoming hearing will be modeled on that plan, with some details to be worked out.

"Courts are based on the notion of due process and protecting the rights of individuals," tribal administrator Wendy Parnell said. "This forum is being set up with that same notion."

Gary LaRance, chief judge of the Hopi Tribal Court, has been selected to preside at the trial. Tribal members can watch, but witnesses will be sequestered until they testify. The media and public probably will be barred. Tribal courts can establish their own rules.

Still uncertain is when the trial will take place. Pico expects the
trial to be scheduled by mid-October, but Parnell said it might be delayed until after a verdict in the criminal case so the defendants could testify without affecting the outcome in that case.

The accused members' casino dividends - about $10,000 a month each - already are being withheld from them and diverted to Sutton to pay his medical bills.

Fines also could be ordered by the court, and the members could be banished from the reservation or from the tribe, temporarily or permanently.

It's the threat of disenrollment that makes this a case never seen in San Diego County.

Banishments are rare nationwide, although some tribes in other states have such practices. These differ from oustings of tribal members in what proponents say are efforts to rectify errors in Indian ancestry but critics attribute to tribal politics and greed for casino money.

Connecticut's Mashantucket Pequot tribe, which has one of the world's largest casinos, is one of the most well-known tribes to reinstitute expulsions, said University of South Dakota law professor Patrice Kunesh, a researcher on tribal legal practices.

"In their own traditional forms, tribes, by custom, would banish
someone from the community," she said. "That was extremely harsh emotionally, physically. Oftentimes it implied a question of survival.

"Nowadays, tribes have constitutions and formal laws and processes and procedures."

Kunesh said many tribes have laws under which nonmembers can be kicked off or banned from a reservation. Rarely are tribal members expelled, and rarer still are instances in which they are stripped of membership.

"Banishment can lead to disenrollment, but usually banishment is for a temporary period of time," she said. "It's fairly rare, but I think there's a re-emergence of banishment as a sanction because, one, it's the most culturally sensitive form of punishment, and two, it speaks on behalf of the community versus one person making a claim against another."

In an interview last week, Banegas and LaChappa said they don't expect a fair hearing. They claim to have been assaulted numerous times by longstanding rivals who are related to governing council members.

"Our enemies, the people we're fighting against, are their children, or their nephews and nieces," Banegas said. "They're just making up the rules as they go."

LaChappa noted the motion at the July meeting to expel them was nearly unanimous, and he said that whatever ruling the tribal judge makes could be appealed to the same general council.

"They want to place blame on somebody," he said. "I don't get along with half of that reservation, because of my family and things that have gone on in the past."

Banegas' mother, Lurlene Oswald, said she thinks the threat of
disenrollment is too severe. She said other tribal members have committed worse crimes - murder, rape, child molesting - and none before have faced expulsion.

"They're blaming these three individuals for all the problems that
have occurred the last couple years on this reservation," Oswald said.

Sheriff's detective Dave Southerland, who has covered the reservation since 1990, said many member-on-member crimes go unreported. However, in general, such incidents have been going down, he said.

While Pico attributes the hostilities mostly to drugs, another tribal
officer, finance chairman Steve Carrizosa, said the underlying problem is more insidious: too much money combined with too little character.

"It's the lack of respect for the community," he said. "I hate to say
it, but it's the wealth, and a lot of the people (who) are not adapted to that way of living."

Pico agreed that most of those causing trouble are having "difficulty dealing with success." However, he said the tribe is trying to address that. It has set up drug-treatment programs and is building a $6 million gymnasium and fitness center.

The chairman said that setting up a tribal court shows Viejas is
maturing as a tribe and as a government.

"We have to do something in this community so we can continue our journey as a vibrant and healthy people," he said. "If not, it could be the end of our people."

[David]

I wish the tribe luck in getting back on track. Too much money and drug use has always been a recipe for disaster.

[Jerry D]

the threat of Dis-enrollment after this case makes precedent will help to keep folks from taking the law into their hands and attempting to kill another tribal member over Money. I think even some state courts even have banishment as part of a sentence .Here in Georgia certain counties banish habitual offenders from the boundaries of the county to keep them from imposing themselves on relatives who are too kind hearted to turn them away and end up getting home and property confiscated for their relatives illegal actions on their property. Jjust another point of view to think about....